Mandatory Reporting a Medico Legal Adviser's Perspective

It is my view that the legislation has introduced a number of unintended and detrimental consequences for medical practitioners and their patients, and the public interest benefits of improved patient safety which underpin the rationale for the legislation are not being achieved.

Problems with mandatory reporting

The main concern about the mandatory reporting legislation is that it is putting patients at risk of harm. These concerns arise primarily out of the "impairment" and "standard of care" provisions of notifiable conduct.

It is apparent that medical practitioners who are physically or mentally unwell may fail to seek their own treatment for fear that in doing so they may be reported, and ultimately lose their professional livelihood. These concerns may result in a delay in a practitioner seeking necessary medical care, thus increasing the risk to themselves and the patients they serve. The effect is that a profession that is devoted to the medical care of their patients, putting their patients first, is not afforded the same care when they wear the mantle of a patient. Simply exhorting doctors not to be fearful of the law will not remove this perception.

Mandatory reporting may also discourage practitioners from disclosing incidents and seeking advice from colleagues, both of which are vital to maintaining professional competence and improving performance. The willingness of health practitioners to openly discuss medical errors is a vital foundation of any efforts to identify adverse events and introduce processes to avoid them. The creation of this open, trusting and learning environment will benefit patients, and is placed at risk by the legislation.

It is instructive to examine the potential barriers to dealing with poorly performing colleagues. Will the introduction of mandatory reporting remove or reduce these barriers? A survey of American medical practitioners found that when confronted by an incompetent colleague, 55% to 67% of the practitioners actually reported the colleague to the relevant regulator.¹ What then were the reasons given for not reporting to the regulator in this situation? The most frequently cited reason for those practitioners who did not report was that someone else had taken care of the problem (19%), followed by the belief that nothing would happen as a result of the report (15%) and fear of retribution (12%). In considering these reasons, it is entirely reasonable not to report when others had already taken action and, indeed, one of the exemptions to mandatory reporting is knowledge that someone else has already reported the colleague.

The study also revealed that medical practitioners were well aware of their ethical and professional obligations with respect to managing poorly performing or impaired colleagues.

Where to from here?

What changes to the National Law can be made to achieve an appropriate balance between the rights of individual medical practitioners and the right of the public to receive safe and competent medical care?

The exemption currently enjoyed by treating doctors in Western Australia should be introduced across Australia to minimise the perception (and, at times, the reality) that medical practitioners should be fearful of seeking their own health care. Importantly, this change will bring consistency and make it a genuine National Law.

The legislative protections for health practitioners making a notification about a colleague to AHPRA should be preserved and strengthened, if needed. Practitioners should be reminded when making a notification that it can be done anonymously. This may assist the small proportion of practitioners who fear retribution from a colleague if they make a notification.

The wording of the "notifiable conduct" provisions in the National Law should be amended to reflect the intended focus of the legislation on the protection of patients prospectively, rather than examining past conduct; that is, the wording should be changed to "practising" rather than "practised", and "placing" instead of "placed the public at risk".

These legislative changes should be made to ensure that patients who are cared for by the medical profession, including other health practitioners, receive safe and competent medical care.

Dr Sara Bird,
Manager, Medico-legal and Advisory Services, MDA National.

1 DesRoches CM, Rao SR, Fromson JA. Physicians' Perceptions, Preparedness for Reporting, and Experiences Related to Impaired and Incompetent Colleagues. JAMA 2010;304(2):187-193.